Make no mistake, we are living in the future. In a matter of moments, we can publish our thoughts, communicate with people on other continents, or start downloading more information than we can ever consume. We are presented with hundreds of great offers every day—each with a thousand caveats. We hear about hackers stealing identities and kids being sued for copyright infringement, and even a New York socialite slap-fight taking place in an anonymous forum can take the national stage. The future is odd, indeed. To help you get some of it straight, we sat down with various lawyers and asked: How do our rights work in the digital age? Can you get in trouble posting messages about someone online? Are there exceptions to copyright? Is it legal to back up your ebooks? Not all of these questions have clear answers, and some answers don’t make much sense. We might be living in the future, but the legal system was designed to deal with the increasingly obsolete present.
Anyone can sue you for anything, anytime, provided they file the paperwork and pay a fee. Whether they have a case is a completely different matter. “Falsely accusing someone of being a prostitute may be defamation, but, depending on the context, a court might read the statement as mere hyperbole, not an actual accusation that [the person] exchanges sexual favors for money,” says Kurt Opsahl, senior staff attorney at the Electronic Frontier Foundation. (DISCLOSURE: Quinn Norton does paid photography for the EFF occasionally.)
The intention of the writer matters. “For example,” says Opsahl, “It was not defamation for ESPN to caption a photo ‘Evel Knievel proves you’re never too old to be a pimp,’ since it was—in context—not intended as a criminal accusation, nor was it reasonably susceptible to such a literal interpretation.” (Besides, with Knievel, it’s so clearly true.)
Definitely, but we’ve got to make a few things clear. First off, copyright is automatic and pervasive. “All creative content is automatically copyrighted as soon as it is created—if you scribble on a napkin, that’s copyrighted,” explains Nicholas Reville, cofounder and executive director of the Participatory Culture Foundation.
Probably, but the vendor has to tell you that up front. What software companies sell you isn’t the stuff they’ve made; they sell you a specialized contract called a license that lets you use the stuff they’ve made. That license, generally printed on the plastic the software is wrapped in (hence, “shrink-wrap license”) or on a webpage in a very small font with an “I agree” button at the bottom, actually tells you what you just bought. “What you see in the fine print is what you get,” says Wendy Seltzer, a fellow with the Berkman Center for Internet & Society at Harvard Law School. “Under a license, you might be denied the right to transfer or reverse engineer the software, or the amount of time you may use the software could be limited. Some courts have been saying, however, that if it looks like a sale, it should be treated as a sale, in rulings that limit the effect of some of these unexpected provisions.”
While selling you just about any kind of license is legal, vendors have to be clear about what they’re selling. If it says that it’s reliable forever on the box, and in the small print it says it may knock out your power grid, sour your fruit, shave your cat, and stop working after a week, you probably have a case. “If you’ve been misled about what’s in the package, the Federal Trade Commission might like to hear about unfair or deceptive trade practices,” says Seltzer. “If the box or download page doesn’t clearly say ‘time-limited,’ yet the software goes poof in the middle of a critical project, you’d have a good argument that you didn’t get what you paid for.”
The moral of the story is that when it really counts, always read the fine print.
Copyright allows you to make a backup of anything you’ve legally acquired for your own use. If you want to scan your books and back up your software or movies for your own personal use, have at it. But (there’s always a but, right?) the Digital Millennium Copyright Act (DMCA) makes it illegal to get at the things you’re trying to back up if they are copy-protected. “If the media is restricted by DRM... the DMCA forbids ‘circumventing’ the DRM, even for media you own,” says Fred Von Lohman, the EFF’s senior intellectual property attorney. So, while the backup itself is a fair use, making it is breaking the law. “The MPAA has argued consistently that ripping a DVD you own for use on an iPod is always illegal,” reminds Von Lohman. It’s the perfect catch-22 that let former MPAA president Jack Valenti tell consumers, “If you want a backup copy, you buy another one.”
Of course, it’s worth noting that as long as your backups remain in your possession and aren’t distributed, there is little likelihood of you ever getting caught.
This issue haunts the space somewhere between “it depends” and “no one knows.” You have to have permission from the copyright holder, except when it’s a fair use. Owning a TiVo gives you permission (for the stuff on the TiVo). The Pirate Bay can’t give you permission—but even so, it depends how you use it. “Where time-shifting is concerned, the most relevant exception will be fair use. If you are a student and need a 30-second clip for a class assignment, that’s likely a fair use. On the other hand, if you download the latest episode of Weeds simply because you don’t want to pay for Showtime, that’s probably not a fair use,” says Von Lohman.
TiVo has negotiated contracts for you, and the court has cleared using a VCR to tape something for later. But P2P is still in legal limbo.
Thus far, the answer seems to be that it depends on the musical taste of the judge, which is really no way to run a legal system. The legal question is: Does the remix so transform the music that the mashup itself counts as a whole new form of expression? “At the Organization for Transformative Works, we take the position that remixes, distributed noncommercially, are generally fair use because they represent new creative works that add to the variety of expression available and don’t generally interfere with the market for the originals. That said, not all copyright owners agree,” says Rebecca Tushnet, professor at Georgetown Law and a legal advisor for OTW. It’s even hazier for commercial works, which are OK in some circuit courts and not others—a recipe for getting the Supreme Court involved.
“It would be great to have a bright-line rule, but there simply isn’t one. Larry Lessig has suggested that we should reform the law to make clear that noncommercial remix is legal,” says Tushnet. Then it would be nice to reform the law to make the status of commercial remix clear, as well.
Downloading isn’t legally different from hosting files, but generally, copyright holders send cease and desist letters to the host rather than the downloaders. Since EMI gave itself a public relations black eye by going after DJ Danger Mouse’s The Grey Album in 2004, not many rights holders have pursued the mashup world, preferring to focus on more straightforward piracy.
Next up, what about open wi-fi?
If you’re following your employer’s rules, you’re OK. “So far, no one has been held liable for someone else’s hacking in the absence of any specific statutory or contractual responsibility to keep the information safe,” says Jennifer Grannick, civil liberties director of the EFF. That bit about “statutory or contractual responsibility” is important, though. If you’re a government employee or contractor, there are certain types of work you either can’t take home or can’t expose to the Internet, like Social Security information. You may have sensitive information from your private employer that’s not supposed to leave the building, as well. It should be a no-brainer that you don’t take that kind of stuff and put it on a home PC connected to the Internet, or leave it on a laptop in the car while you eat lunch, but people keep doing it—and their Data Valdezes keep ending up in the news.
Think before taking work home, or better yet, leave work at work. Your Blood Elf Warlock won’t level himself!
The law is all about intention. “People aren’t held liable for the bad actions of others, unless they have a duty to prevent the harm, or they conspire, solicit, aid, or abet the wrong-doer,” says Grannick. If you aren’t nudging and winking at the lawbreaker, and if you had no idea it happened, you haven’t broken the law. But we don’t have court-appointed mind readers yet, and it’s not impossible to find yourself pressed to prove you weren’t knowledgeable of or complicit in a crime committed from your Wi-Fi. “Merely having open Wi-Fi should not cause you any liability, but it does leave open the possibility that law enforcement investigating a crime will think you are the culprit and act accordingly.” Even though you are likely to clear your name, it might be a headache to get there. If someone breaks your WEP key, you could find yourself in the same position anyway—fortunately, both situations are more rare than getting struck by lightning.
Like buying, ahem, rather licensing, time-bomb software, “the answer would depend on the small-print terms of service,” says Art Brodsky of the nonprofit Public Knowledge. “ISPs often cover themselves with the details.”
The net may be complex, but legally speaking, personal property is pretty well understood. Both taking your property and searching it are issues the law is quite clear about. Your employer can potentially get into all kinds of trouble, both criminal and civil, if you haven’t given your permission for the taking, much less the searching, of your property. If any damage is done to your property in the process, you can sue your employer under various tort laws, with names like “tort of conversion” and “trespass to chattels,” not to mention the crime of theft. Plus, there’s “potential... liability under federal and state laws criminalizing unauthorized access to a computer system,” says Kevin Bankston. “Depending on how invasive the search is and what kind of personal data is stored on the computer, such a search may also constitute an invasion of privacy under state law,” Bankston adds. Of course, you can sign all those rights away with your employment contract. It’s all there, in the really tiny print.
We don’t know, and it’s not because we didn’t do our homework. “The federal courts are currently split on whether secretly installing a keylogger violates federal wiretapping laws,” says Bankston. What that means, in a practical sense, is that there either is no law, or existing law hasn’t been interpreted such that the matter is settled.
There’s a lot of law like this in every field—it’s just unknown until the courts take it up and argue over it for a few years. But the Internet is new enough and strange enough that places where it touches (like copyright and privacy) are in real legal turmoil. And if that weren’t enough, these debates get to be hashed out on the state level in every single state, as well.
It’s an interesting time to be a lawyer (if a stressful time to be a PC user) with the legal eight-ball so often coming up “Answer hazy, try again later.” Don’t expect the situation to settle down anytime soon. The law moves notoriously slowly and the net hasn’t shown any signs of waiting for the law to catch up. Now more than ever, it’s important to read the fine print, but often we deal with impossible amounts of fine print. Try to know what you’re buying, renting, licensing, and so on, and be aware that even well-known brands often bait-and-switch their services.
The good news is that this legal incoherence has turned so many of us into scofflaws that getting caught is like winning the reverse lottery—unpleasant, to be sure, but also unlikely. Wait, that’s the good news? Let’s try that again: The good news is that we have so many more ways to express ourselves, be creative, and connect to each other that the law is floundering trying to understand it, and we’re making a new world while it flounders. So happy netting, people of the future!
Quinn Norton has written about the intersection of technology and law for Wired , The Guardian , FAIR , The Irish Times , and more. She knows too many lawyers, and has been known to get them drunk, hang out at their parties, and DM their D&D sessions. Quinn is reachable at email@example.com .